Armed Forces (Service Complaints and Financial
Assistance) Bill [HL]
14. The Bill had its Second Reading on 23 June.
It sets out a new statutory regime for the making and determination
of service complaints, including the establishment of a Service
Complaints Ombudsman, and it enables the Secretary of State to
give financial assistance for activities which are intended to
benefit the armed forces community.
15. The Ministry of Defence have prepared a
memorandum for the Committee explaining the delegated powers in
the Bill.[3] Other than
the provisions at the end of the Bill dealing with commencement,
and allowing the provisions of the Bill to be extended to the
Channel Islands etc., the only delegated powers are in clause
2 which inserts new sections 340A to 340O into the Armed Forces
Act 2006 ("the 2006 Act"). These new sections contain
a number of delegated powers, since they operate primarily by
providing for the new system for redress of complaints to be set
out in Defence Council regulations. Some regulation-making powers
are also conferred on the Secretary of State. This structure
substantially reflects the structure of the existing legislation,
and many of the delegated powers in the new provisions reflect
powers conferred under the old. Generally where this happens
the same level of Parliamentary scrutiny applies. There is one
significant difference in that under the new sections of the 2006
Act the Defence Council regulations are to be made by statutory
instrument and are subject to the negative procedure, whereas
under the old provisions they are not made by statutory instrument
nor are they subject to any Parliamentary scrutiny.
Clause 2 - Grounds of admissibility for service
complaints
16. New section 340B(4) of the 2006 Act requires
the regulations to provide for a decision to be taken on the admissibility
of a service complaint, with provision for that decision to be
reviewed by the Service Complaints Ombudsman. The requirement
for a decision on admissibility is a new element to the redress
of complaints procedures which does not appear in the existing
provisions. Admissibility for these purposes is defined in section
340B(5). There are three elements to the definition: a complaint
is inadmissible if it is about a matter excluded from being the
subject of a complaint under regulations made under section 340A(4);
if the complaint is made outside the time limit set out in the
regulations; or if it is inadmissible on any other ground specified
in service complaints regulations (see section 340B(5)(c)). The
first two are matters which are referred to in the existing legislation.
There is, however, nothing in the existing legislation equivalent
to the power conferred by section 340B(5)(c) to specify in regulations
other grounds on which a service complaint can be held to be inadmissible.
17. Regulations under section 340B are dealt
with in paragraphs 17 to 20 of the department's memorandum. We
were again surprised that no explanation was included in the memorandum
for what seems to us to be an important delegation of powers under
section 340B(5)(c). In our view the powers are potentially very
significant in that they allow additional restrictions to be imposed
on a person's right to have a complaint dealt with under the new
redress procedures. At the same time the powers conferred by
section 340B(5)(c) are very wide: they contain no limits on the
kinds of matters which might be specified in the regulations as
grounds for a service complaint to be inadmissible. Given
the importance of the power and its potential to limit the right
to bring a service complaint, and the lack of any restrictions
on the matters which may be specified under the regulations, we
consider the delegation of powers conferred by section 340B(5)(c)
to be inappropriate.
3 http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/bills-considered/ Back
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